On Tuesday, December 6, the Court heard argument in a case – Martel v. Clair– presenting the question of how easy it should be for a death row inmate to replace his appointed counsel in federal habeas corpus proceedings. The respondent, Kenneth Clair, was convicted of murder and sentenced to death nearly twenty-five years ago. In 2005, after an evidentiary hearing on his federal habeas petition, Clair wrote to the district judge complaining that his appointed counsel was making no effort to analyze previously missing physical evidence that had recently been located. In quick succession, the district judge denied Clair’s request to replace his lawyer, denied habeas relief, and retired. The Court of Appeals for the Ninth Circuit decided that the district judge had abused his discretion in denying Clair’s request for replacement counsel, and directed the district court to consider any requests from new counsel to amend the petition to add claims related to the new physical evidence as if they had been made prior to the ruling on the writ.

California complains that the court of appeals, in adopting the “interests of justice” standard applicable in non-capital cases, made it too easy for death row inmates to delay the proceedings and get another opportunity to raise new claims, simply by complaining about their appointed counsel after habeas proceedings were well underway. It contends that the correct standard would allow substitution only if appointed counsel failed to meet the statutory requirements for appointed counsel, faced a conflict of interest, or completely abandoned the client. At oral argument, California made little headway on this front.

Justice Sotomayor was particularly blunt, asking if it was “sort of a made-up standard.” When Ward Campbell, Supervising Deputy Attorney General of California answered “No,” she pressed on. “Can you point to one case in which this standard has been used by any district court or court of appeals?” “Can you point to any inquiry by Congress in which such a test was discussed, considered in any way?” To both questions, Mr. Campbell admitted, “No, I cannot.” Justice Ginsburg followed up by asking, “Where did you get it from?” He responded that it was “analogous to the way this Court over the years has divided up the jurisprudence regarding the Sixth Amendment right to counsel and the dividing line between claims of ineffective assistance of counsel and claims of denial of counsel.”

Justice Sotomayor posited an example of a habeas case where the petitioner’s appointed counsel wants to challenge the death sentence but the inmate himself decides he would prefer to allow the execution to proceed. She suggested that this was a situation where the interests of justice might allow substitution of counsel, but that substitution would not be permissible under the standard suggested by the state. In attempting to explain how substitution could be permissible under the state’s proposed standard, Mr. Campbell urged that such a situation would involve “the failure of the lawyer to truly act as an agent for the client.” When pressed that the same could be said of the failure of a lawyer to follow a client’s direction to pursue particular leads, Mr. Campbell distinguished between decisions that are the client’s and decisions that are the attorney’s.

Justice Breyer suggested that the state’s real concern was not so much with the standard but with the way the court of appeals applied the standard. He asked, “So what you really want us to do is to look at the record of the case, go through it, and say, here, whatever words you want to use, the district court acted in his discretion in saying don’t change the counsel?” This might have given Mr. Campbell the opportunity to argue a less extreme position, and explain why the district court was within its discretion – even under the “interests of justice” standard – to refuse to appoint new counsel after it had already conducted an evidentiary hearing and was about to decide the case. But when he began to answer Justice Breyer’s question with “Yes, that is — yes,” Justice Scalia jumped in to remind him of his broader argument, saying, “Well, no, you don’t want that. . . . You want us to say the words to be used are the words that we use in deciding whether you have been accorded your constitutional right to counsel, right?”

Mr. Campbell then agreed with Justice Scalia. But it nevertheless seemed even more unlikely after argument than before it that the Court would adopt the state’s suggested standard. Particularly telling, perhaps, is that Justice Kennedy noted that “it seems to me that at the end of the day it’s going to be something very close to interest of justice.”

Although no one except Justice Scalia asked questions suggesting any inclination to adopt California’s strict standard for substitution of counsel, several members of the Court seemed troubled by Clair’s argument that the district judge had abused his discretion in refusing to substitute counsel.

Clair’s counsel, former Solicitor General Seth Waxman, following a strategy of seeking to make the case as small as possible, began by stating the “court of appeals held that it was an abuse of discretion to deny substitution without making any inquiry, even of counsel, into the specific situation alleged by Mr. Clair.” He then began to recite all of the broader propositions that the court of appeals did not decide, but before he could finish that list, Chief Justice Roberts asked whether, if Mr. Clair had written to the Supreme Court complaining about how Mr. Waxman was planning to argue the case, “we have an obligation to conduct an inquiry into his complaint?” Mr. Waxman responded that “in the mine run” of cases, “there may not be any duty of independent inquiry,” and that if there were a duty, it would simply to “inquire of the two counsel in the case.”

Chief Justice Roberts grilled Mr. Waxman regarding the significance of the district judge’s retirement the day after denying substitution of counsel. Noting that the point is mentioned “no fewer than six times in your brief,” he asked, “What is your point, that the judge altered his disposition of a legal matter before him for his personal convenience?” When Mr. Waxman responded that it suggested “an explanation for why he failed to conduct the minimal inquiry,” Chief Justice Roberts cut him off, “So you are saying he violated his judicial oath for his own personal convenience, that he failed to do something that you say he should have done, because he was retiring?” Mr. Waxman retreated, stating that the retirement was relevant to the remedy, that is, whether the court of appeals should have simply sent the case back for the appropriate inquiry to be conducted. The Chief Justice did not let go, stating that it struck him as “argument by innuendo that I think is very unjustified.” Even after Mr. Waxman apologized, and Justice Kagan started to ask a question, the Chief Justice persisted, “I’m still trying to get to the point of the fact that he was retiring.”

Eventually, the Chief Justice yielded to Justice Alito, who asked why the district judge, who was about to decide the habeas case when Clair’s letter came in, shouldn’t be understood to have decided that there was no way “in which the matters that were discussed in the letters could lead to a claim that would go anywhere,” because a Brady claim would fail based on the inability to test the newly discovered physical evidence at the time of trial, while an actual innocence claim would be “quite far-fetched” in light of Clair’s statements that had been recorded by his girlfriend. Mr. Waxman responded that this “may very well be what was in his thought process, but we don’t know that,” prompting Justice Kennedy to say that “we know what was in his thought process” based on the lengthy opinion he filed deciding the habeas case. Justice Kagan then reprised Justice Alito’s question: if the district judge knows he is ready to issue his opinion and that “further investigation of this evidence is not going to change his mind,” why shouldn’t the judge reject the motion?

Mr. Waxman responded that the judge “could not know that based on the allegations” in the letters submitted. He emphasized that the letters pointed not to only new physical evidence that could now be DNA tested, but also to fingerprints at the crime scene that had not been tested against anyone, including other people suspected of a similar murder the night before in the same area. Justice Breyer suggested that what the court of appeals was trying to do was find some way to get the district judge “to focus on the question of whether the petition should be amended to assert this kind of claim about the new physical evidence.”

After a discussion prompted by Justice Scalia about how the “interests of justice” standard found in the statute governing non-capital cases could apply to capital cases where it was omitted, Justice Alito returned to the question of how other fingerprints could establish Clair’s innocence, noting that “it’s weak exculpatory evidence at best that there were unknown people in the house. It might have been the cable guy. Who knows who they were?” Mr. Waxman acknowledged that we are “all arguing in a vacuum here, because we don’t know what the fingerprint evidence,” if tested, would show, but he noted that the county coroner had determined that because this murder was extraordinarily similar to another murder in the neighborhood, including “very peculiar puncture injuries,” the two were likely committed by the same person. In his closing, he emphasized that to this day we don’t know whether the state has matched the fingerprints of the perpetrator of that other murder to the fingerprints found next to the victim in this case.

Rebuttal focused on precisely that point, with Justice Sotomayor asking if that testing has been done. Mr. Campbell said “no” and admitted that it would give the prosecutors pause if the fingerprints at the scene matched those of the person who committed the other murder, but he could not provide any reason why the testing was not done. With Justice Scalia’s help, he pointed to the strength of the government’s case against Clair, relying on Clair’s “implied admissions” in the recorded conversation with his girlfriend.

It is, of course, hazardous to predict outcomes from oral argument. But there can be little doubt that Mr. Waxman succeeded in focusing the Court’s attention on the particular facts of this case rather than on the broader question of the appropriate standard for replacing appointed counsel.

Edward A. Hartnett, Richard J. Hughes Professor for Constitutional and Public Law and Service at Seton Hall University School of Law, is a coauthor of Supreme Court Practice (aka Stern & Gressman).

Aug. 2015

In a conversation with Bill Kristol of The Weekly Standard, Justice Samuel Alito reflects upon (among other things) his arrival on the Court, recent First Amendment cases, the themes in his dissent in Obergefell v. Hodges, and his love for baseball.